Scribner v. Whitcher

The opinion of the court was delivered by Richardson, (J. J. We are of opinion that a person,-against .whom judg [65] ment has been rendered, for a fine,, under the miltia laws, is entitled to two full days, exclusive of Sundays, after the day when judgment is rendered, to pay the fine and costs, before any execution can be taken out against him. The statute, on this subject, is in the following words: “ If the person, against whom judgment shall be rendered, shall neglect, for the space of two days thereafter, to pay to such justice the amount of such fine and costs, the said justice shall issue execution.” It is manifest that the execution is to be stayed two days, in order to give the soldier an opportunity to pay the forfeiture and costs, and save further costs and trouble ; and such a provision, in the statute, ought to be construed liberally and in such a manner as to give full effect to the intention of the legislature. And to construe the statute to give two days, exclusive of Sundays, seems to us to be perfectly reasonable. The execution, then, in this case, is tested, and actually issued, one day too soon, and the question is whether it is, on this account, void ? If it had been executed on the day when it issued, it must have been adjudged to have been, at that time, a nullity. It was so decided in Briggs v. Wardwell, 10 Mass. Rep. 366. In that case the arrest was made before the execution could lawfully issue. Rut in this case nothing was done until two days after the time when the justice was authorized to issue execution. Does the circumstanc that it was, in fact, made out too soon, render it void ? We think not. It is believed to be a common practice with the clerks of this court to make out executions, and in many cases to deliver them to attornies, before the time when they can lawfully issue, taking care to make the teste as on a day when they may lawfully issue. No inconvenience has resulted from this practice,and in many cases it has been a great accommodation to attorneys. But if the suing out of an execution too soon renders it void, the true time of suinp66 it out may be shown, notwithstanding the teste, and ali executions thus issuing must be adjudged void. Does the circumstance, that the execution was tested a day too soon, render it void ? Surely not. Suppose it could be shown that the execution was,in fact,sued out in this case on the 15th December, and tested on the 14th, by mistake — could it beheld that such a mistake rendered the execution void ? We think not. If the justice had tested this execution a day later, although actually issued on the 14th, it would have been well enough. He, by mistake, tested the writ on a wrong day, and such a mistake does not make the execution void. A mistake in the teste of an execution is amendable. It was so held in former times, when much more rigid rules, as to amendments, prevailed, than are now adopted. And still more material mistakes in executions than mistakes in the teste have not unfrequently been amended. T. Jones, 41, Smith v. Harwood; 2 Burrows, 1187, Campbell v. Cumming; 1 Salkeld, 273, Sherley v. Wright; 2 Tidd’s Prac. 956; 3 Caine’s Rep. 98, Holmes v. Williams; 4 Taunt. 322, Mackie v. Smith; 4 M. & S. 329, Hunt v. Pasman; 5 D. & E. 577, Newnham v. Law; 9 Johns. 386, Cramer v. Alslyne; 1 Chitty’s Rep. 349, Stevenson v. Castle; 2 Bl. Rep. 836, Hunt v. Kendrick; 1 Cowen, 33, Center v. Billinghurst. Wc are, therefore, of opinion, that as the execution, in this case, is amendable, and not void, the defendants cannot be considered as trespassers for what had been done under it, and that, upon the case stated, they are entitled to judgment.